Dreyfus v. American Bonding Co.

On Motion to Dismiss the Appeal. O’NIELL, J. [1] This is a coneursus proceeding in which the surety on the bond of the contractor has appealed from a judgment approving the report of the commissioner. The materialmen have moved to dismiss the appeal on the ground that the appellant’s exceptions taken to the report do not refer to the findings in favor of the materialmen. If they had taken this view of the exceptions in the district court, they should have moved for a confirmation of the findings in their favor, when the delays for filing exceptions expired. On the contrary, the exceptions were regarded as objections to the findings in favor of the materialmen, as well as the owner of the buildings, and the judgment of confirmation was rendered after a hearing thereon. We will not pass upon the various exceptions to determine a question which may properly be considered on the [493] merits. The motion to dismiss the appeal is therefore denied.